My Lords, I acknowledge that, as with the previous group, we have perhaps gone wider than the specific amendments. In the interests of time, and since we need to make progress on the Bill, I am not going to go into the more general arguments. My noble friends on the Front Bench and I have articulated several times the Government’s position on the need to proceed with the Bill, and those circumstances remain. I am reminded that when the debate started this afternoon, my noble friends Lord Cormack and Lord Howell, I think, among others, returned to the Front Bench the point about the necessity—to use a legal term, but not in its application to the Bill—to proceed with it. I assure the House as one of the three Ministers responsible for the passage of the Bill that, while in the middle of a reshuffle, our weekends—I speak for all three of us—have been focused on the detail of the Bill and proceeding with it. The fact that the three of us are still present reflects the Government’s current intent, because we feel that this is necessary.
I have heard the arguments again today, many of which were articulated at Second Reading and in our debates so far in Committee, and I understand the points made by the noble Lord, Lord Pannick. I listened carefully on the issue of Article 16, and he is of course right. I know that the noble Lord has a different perspective, but that is why I say that we have never said that Article 16 is off the table. It remains an instrument available to the Government within the treaty that we have signed, as noble Lords have said. However, there is a reality, which was articulated very well just now by my noble friend Lord Dodds. The reality is what businesses are now facing. The protocol is not working and if is not working in the interests of any part of the United Kingdom, as its Government we are obligated to ensure that we provide a practical solution which works in the interests, first and foremost, of the citizens of our united United Kingdom. That remains the primary intent of the United Kingdom Government.
I will pick up on some of the specifics. In introducing his amendments, the noble Lord, Lord Purvis, asked about published statistics. What I can share with the noble Lord is that HMRC has published summary data on the numbers of declarations, their associated value and the number of businesses importing goods into Northern Ireland from Great Britain in 2021. I will give a couple of summary statistics, if I may: in 2021, over 1 million full declarations were declared to HMRC. The number of businesses associated with those full declarations was 10,400, while 100 GB businesses have stopped supplying the Northern Ireland market already. The requirement to follow EU rules is one of the factors behind this situation, as was alluded to in the detail of the contribution of my noble friend Lord Dodds.
I turn to the amendments in front of us, including Amendment 7 in the name of the noble Lord. As many noble Lords noted, a number of the amendments are on the recommendations of the Delegated Powers and Regulatory Reform Committee, to which the Government will respond, as I said earlier, as they will to the report of the Constitution Committee. I have checked with officials and we will certainly seek to respond in advance of Report.
I acknowledge the reservations raised today. The noble and learned Lord, Lord Judge, is someone who I respect greatly and have great admiration for. I assure noble Lords that in our engagement on the Bill, it did not surprise me at all that the majority of our discussions began, as he said, “Well, Tariq, you know what I’m going to raise with you.” Yes, the Bill has many clauses where the Government seek to take certain powers because we believe that they are necessary. The Government remain of the view that these delegated powers are required, and will enable secondary legislation to set out precisely the UK or non-EU movements that will be excluded by Clause 4(2).
The operation of the protocol, as we heard from the noble Lord, Lord Bew, and my noble friends Lord Dodds and Lord Lilley, has shown that the manner and nature of the issues faced by businesses in moving goods have not been static over time. There needs to be flexibility to respond to the changing circumstances in order to maintain the effective flow of goods between Great Britain and Northern Ireland. As noted in the 2025 UK Border Strategy, we are seeing long-term shifts in how goods move; for example, through increasing e-commerce and advances in technologies for Governments to manage flow. It is therefore appropriate that means are available to adapt arrangements to be fit for purpose at all times. In the Government’s view, this power is drafted with the appropriate breadth for them to confidently address issues which may arise from time to time that disrupt businesses.
I listened carefully to the noble Earl, Lord Kinnoull, on the importance and appropriateness of making secondary legislative provision and what the alternatives would be. The EU legal acts in the first 10 points in Annex 2 alone are over 1,500 pages in length. Before one even comes to the remaining 37 points contained therein covering other pieces of EU law, that is already longer than some of the longest pieces of legislation currently on the statute book. To draw a totally different example, the Companies Act 2006 is 1,260 pages long. It would therefore not be appropriate, in the Government’s view, to have this amount detailed in primary legislation.
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I turn now to Amendment 8, which is also based on the recommendations of the DPRRC and is in the name of the noble Lord, Lord Purvis. Clause 4(5) provides the power to
“make provision about the meaning of ‘UK or non-EU destined’”
goods and provides examples of how the power may be used. The conditions and criteria for determining what is a UK or non-EU-destined good are likely to be detailed. These conditions and criteria will need to be mindful of the full complexities of business operations and supply chains, which are constantly changing, as I said earlier. It would not be proportionate to update primary legislation with this level of detail. Similarly, delegated powers enabling detailed provision to be made in secondary legislation are suitable in the Government’s view for legislation dealing with the movement of goods. It would not be appropriate use of parliamentary time to engage in legal technicalities of how a movement is technically defined.
I hope those who seek to understand the Government’s intention in this clause will also consider the explanation that the Government have set out in the accompanying documents and statements. My noble friend Lady McIntosh raised the issues of regulations. I alluded to those earlier and of course I accept them, but as details emerge we will share further details on this. I also point out to noble Lords the volume of secondary legislative provision that might be required. I have been told that annexe 2 of the protocol contains over 1,500 pages. This is greater than the Government of India Act 1935, which the noble Lord, Lord Pannick, may know far better than I do, but, being of Indian origin, “India” certainly resonates with me.
The issue of negotiation and discussion was raised by the noble Lord, Lord Kerr. I had the opportunity to join the last call that the Foreign Secretary had with Commissioner Šefčovič. Therefore, when I talk about the tone and detail of our engagement, I can share with noble Lords that it was positive and constructive. I add the simple point that the EU is aware that the Bill is being proceeded with in your Lordships’ House; it is not lost on the EU. I am sure that it will have a different perspective from the UK Government, but this is a reality. My noble friend Lord Caine is in his place and the same applies to the discussions we are having with our colleagues in the Republic of Ireland. These things should not be factored out; these are the realities and practicalities of where we are today.
The tone and substance of the discussions were constructive—I share that not through something written in front of me, but from first-hand insight—but I cannot speculate on whether that will continue for ever. However, I can share with noble Lords, as I said I would, that we seek to provide, where we can, insights into how discussions are going. At the same time, I reiterate—no noble Lord would expect this, as many, like myself, have business experience—that you do not start showing every single hand and detail and discuss them openly in a negotiation. That point was made very ably by noble Lords who are supporting the Government’s actions on the Bill.
I move to the question of whether Clause 4 should stand part of the Bill. It is a key provision which will allow the implementation of a new regime for the movement of goods entering Northern Ireland and remaining in the UK. Clause 4(1) and (2) makes excluded provision those parts of the Northern Ireland protocol which require goods remaining in the UK to complete burdensome customs and regulatory processes. This includes provisions which would require the goods considered “at risk” of entering the EU to pay the EU tariff.
As noble Lords will be aware, the Government’s intention is to put in place a different regime with a green lane free of unnecessary paperwork, checks and duties for goods remaining within our united United Kingdom. For goods destined for the EU, there will be a red lane where full checks, controls and customs procedures would apply. I have said to officials that we are quite happy to arrange a briefing on the detail of how these lanes may work. I have said this to my noble friend Lord Cormack. Where I can, I will seek to
provide clarification and more detail as necessary. If that is something that noble Lords feel would be helpful, we would be happy to arrange that.